Affray

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What is Affray ?

Affray occurs when a person uses or threatens unlawful violence towards another person and this causes a person of “reasonable firmness” present at the scene to fear for his or her personal safety.

Affray generally involves a disturbance of the peace.

Some examples of affray include:

  • Getting into a fight in a public place such as a nightclub or a bar;
  • Partaking in road rage;
  • taking part in a violent public demonstration; and/or
  • a two-sided brawl;

Case law/Jurisdiction

An offence of affray is what is known as a “Table 1” offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is it is to be dealt with on indictment by the Director of Public Prosecutions (DPP).

The nature and elements of the offence of affray were considered in Colosimo v DPP (2005) 64 NSWLR 645.

The Law

Section 93(C) of the Crimes Act 1900 (NSW) provides that a:

“A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years”.

The conduct of the offender of an affray charge is to be considered when sentencing those who are guilty or found guilty by the Local Court.

What must the prosecution prove?

Since affray is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of affray.

To establish affray, the prosecution must prove each of the following matters beyond reasonable doubt:

  • You used, or threatened to use violence towards another person;
  • You intended to use or threaten to use violence;
  • Your actions would cause a reasonable person to fear for their personal safety; and
  • You did so without lawful excuse.

If you are charged with the offence of Affray what are your options?

National Criminal Lawyers (NCL) have been successful in defending a large number of affray charges where the prosecution could not establish each of the elements of affray. We have also achieved a number of non-convictions for affray charges.

NCL offer the following options for those who have been charged with affray:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

Affray can be punished with a prison sentence of up to 2 years (if heard in the Local Court) or up to 10 years (If heard in the District Court).

Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers have defended thousands of people charged with affray and are experts at these hearings.

Defences

Some of the possible defences available for those charged with affray can include:

  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;
  • If you were defending yourself or another OR yours or another’s property you may have a Defence of “Self-Defence” even in situations where “Pre-Emptive Force” is used. Moreover, at times there be a circumstances where you may argue that there was “No duty or need to retreat”.

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For affray offenders 13% of offenders received a full-time prison sentence whereas 49% received a good behaviour bond.

Possible Penalty's

In NSW, a court can impose any of the following penalties for an Affray charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine; and/or
  • New Conditional release Order (CRO)

Case Studies

Our client, a former boxer, was acquitted of Affray having punched and kicked the victim in the early hours of the morning in Kings Cross.

CCTV evidence showed numerous individuals involved in an attack on the victim.

Our client was clearly seen to assault the victim, knocking him out in the process.

In terms of the case Our Specialist Defence Criminal Lawyers was able to raise self-defence. He did this by successfully leading evidence from three witnesses (as well as cross examining the alleged victim and police officers at the scene).

Through proper examination of the testimonies of these eye witnesses, it was discovered that the CCTV footage did not tell the whole story. In particular the part missing was how the altercation began and the conduct of the alleged victim.

In arguing self-defence our Criminal Lawyer argued “no duty of retreat” and even that “pre-emptive use of force can amount to self-defence”. Our client was acquitted of the charge in the Local Court of NSW.

In particular it was found that the victim was extremely drunk and abusive to several women in the vicinity and although not shown on CCTV, the witnesses all pointed to the victim as being the one who started the fight, and whilst during the fight the one who made continual attempts and advances to keep the fight going oftentimes following and grabbing at our client and his body and legs.

The Court held that our client did use proportional self-defence and as such he was acquitted of the Affray charge.

Our client who was aspiring to be a dentist was relieved as his career opportunities may have been impinged on if he was guilty and convicted of an offence of affray. Luckily for our client he can now enjoy his career aspirations as both as professional boxer and soon to be, dentist.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Affray offence our Team at National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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